I believe the circuit court
did not commit reversible error during the appellant's first-degree murder
trial. Therefore, I respectfully dissent.

Preliminarily, I note that
I am troubled by the majority's statement that they considered the appellant's
assignments of error in the context of the appellant's substantial
challenge to the prosecution's case. By this the majority refers to the witness
who was in jail with the appellant to whom the appellant made inculpatory
remarks; the witness who was a former girlfriend of the appellant and admitted
to drug use; and the evidence against the appellant was discovered sometime
after the early investigation. I believe one could interpret the
majority's remarks to mean that if the appellant had not substantially
challenged the prosecution's case, the Court might have reached a different
result. Undoubtedly, this Court has invaded the province of the jury and disregarded
its own ruling which states that '[c]redibility determinations are for
a jury and not an appellant court.'

The appellant complains
that a potential juror failed to honestly disclose that his mother
had been murdered in a domestic violence dispute eighteen years earlier when
the prospective jury panel was asked during voir dire, Have any of you
ever had a friend or family member who has been a victim of a crime of violence?
The majority summarily concludes without much discussion that in this case
the failure to disclose constitutes reversible error. I disagree. The majority
utterly failed to apply the two-part test enunciated by the United States
Supreme Court in McDonough Power Equipment, Inc. v. Greenwood, 464
U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663, 671 (1984), which states

that to obtain a new trial
in such a situation, a party must first demonstrate that a juror failed to
answer honestly a material question on voir dire, and then further
show that a correct response would have provided a valid basis for a challenge
for cause. The motives for concealing information may vary, but only those
reasons that affect a juror's impartiality can truly be said to affect the
fairness of a trial.

The question propounded to the
juror is overbroad. The Fourth Circuit's analysis in United States v. Jones,
608 F.2d 1004, 1007 (4th Cir. 1979), is apropos:

It is
well established that a trial court may exercise broad discretion in conducting
the voir dire of the jury, and particularly in phrasing the questions to be
asked. The fact that a juror or his relative has been the victim of some crime,
unrelated to the offense being tried, is, we think, only minimally relevant
to the question of that juror's impartiality. Indeed, if the mere fact that
a juror or his relative had been the victim of some crime unrelated to that
being tried constituted grounds for discharge, it would become difficult, if
not impossible, to assemble a jury panel. In the instant case, defendant does
not suggest that any particular juror was actually subject to an influence adversely
affecting his impartiality. As a consequence, it was not an abuse of discretion
to refuse to ask the prospective jurors whether they or any of their relatives
had been the victims of any crime.

The facts in Fitzgerald v.
Greene, 150 F.3d 357 (4th Cir. 1998), are similar to the facts in the case
sub judice. Fitzgerald was on trial for robbery, murder, abduction, and
rape. His conviction was affirmed on appeal. He then filed a petition for writ
of habeas corpus in the Fourth Circuit contending that James Bradshaw's presence
on the jury deprived him of a fair and impartial jury, in part, because Bradshaw
failed to disclose during voir dire that his granddaughter had been molested
when asked if he or any member of his family had been the victim of a rape,
robbery, or abduction. Bradshaw answered no and agreed that he could render
a fair verdict. Later, during jury deliberations, Bradshaw disclosed that he
had no sympathy for rapists because his granddaughter had been molested. After
the verdict was announced, the jury foreman reported the incident to the court. After completing
a post-trial hearing during which the trial court was satisfied that Fitzgerald
suffered no prejudice from Bradshaw's presence on the jury, Fitzgerald's motion
for a mistrial was denied. The Fourth Circuit denied Fitzgerald's petition.
In the case at bar, the prospective juror simply remained silent when asked
if any member of his family had been the victim of a crime. He was not asked
if any member of his family had been murdered.

Pursuant to Syllabus Point
4 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), in West
Virginia '[t]he true test as to whether a juror is qualified to serve
on the panel is whether without bias or prejudice he can render a verdict
solely on the evidence under the instructions of the court. (Citation omitted.)'
Syllabus Point 4, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199 (1983).
Even if the juror in question had disclosed that his mother had been murdered,
he could not have been removed for cause absent a showing of bias or prejudice.
The trial court was satisfied that none of the jurors who were selected to
serve on the panel in the appellant's case were biased or prejudiced. I would
defer to the sound discretion of the trial court.

Furthermore, I believe the
jury was properly instructed regarding the meaning of premeditation.
The appellant admits that [t]he jury in this case was instructed consistently
with the requirements of Guthrie. He, nonetheless, complains
because the prosecutor stated during closing arguments that premeditation
could be formed in an instant. Upon objection, the judge immediately informed
the jury to disregard the prosecutor's comments and to rely on the legal definitions
supplied by the court in the jury instructions. In this instance, the trial
court responded in an entirely proper manner.

Because I do not believe
there was an abuse of discretion, I respectfully dissent to the majority opinion.

This
Court has also consistently held that '[w]ith regard to evidence
bearing on any material issue, including the credibility of witnesses, the trial
judge should not intimate any opinion, as these matters are within the exludsive
province of the jury. Syllabus Point 4, in part, State v. Burton, 163
W.Va. 40, 254 S.E.2d 129 (1979).' Syllabus point 5, State v. Harris, 169 W.Va.
150, 286 S.E.2d 251 (1982). Syllabus Point 7, State v. Leep, No. 30018,
June 19, 2002.